This Terms of Service Agreement (the “Agreement”) is a binding legal agreement between Company (“Customer,” “you,” or “your” as defined below) and Metabase Q, Inc. doing business as Batuta (“we,” “us,” or “our”) concerning your access to and use of our applications, websites, software and support services (the “Platform”) through which we offer our products and services for endpoint security and posture management (“Services”) to end users directly or through a third-party program.
“Company” is the organization, company or business entity that you represent in accepting this Agreement.
BY CLICKING “I AGREE” OR BY ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE YOU ARE AUTHORIZED TO FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAWS IN THE JURISDICTIONS IN WHICH THE PLATFORM AND SERVICES ARE MADE AVAILABLE, AND THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU ARE NOT ELIGIBLE (AS SET FORTH BELOW) OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE.
The Service is a cloud-based software as a service solution that provides endpoint security and posture management. To use the Service, you are required to install a lightweight software agent (the “Agent”) on each endpoint device (including, but not limited to, laptops, desktop computers, and servers) that you wish to manage. The Service also includes access to our web-based management console and related documentation and email support.
By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least 18 years of age; and (b) if you are using the Service on behalf of an entity, organization, or company (“Represented Entity”), you have the authority to legally bind that entity to this Agreement, and you agree to be bound by these terms on behalf of that entity.
Subject to your compliance with the terms of this Agreement, the Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to:
(a) Download, install, and use the Agent on the number of endpoints specified in your subscription plan. (b) Access and use the Service’s web-based management console to configure and manage the Agent and your endpoints.
This license is granted for your internal business purposes only. You are not granted ownership rights to the Service or the Agent. All rights not expressly granted to you are reserved by the Company.
You agree not to, and will not permit others to:
(a) Copy, modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service or the Agent, except to the extent that such a restriction is prohibited by applicable law. (b) Use the Service or the Agent to develop any competing product or service. (c) Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or the Agent to any third party. (d) Use the Service or the Agent for any unlawful purpose or in any way that could damage, disable, or impair the Service or interfere with any other party’s use of the Service.
(a) Agent Installation and Removal: Customer is solely responsible for the installation and uninstallation of the Agent on your endpoints. Upon termination of this Agreement or cancellation of Services, Customer is solely responsible for the uninstallation of all Agents from all endpoints. The Company shall have no liability for any data loss, security risks, or other damages arising from your installation or failure to uninstall the Agent. (b) Account Security: You are responsible for maintaining the confidentiality of your account credentials and for all activities that occur under your account. You agree to notify us immediately of any unauthorized use of your account by emailing support@batuta.io. (c) Compliance: You are responsible for ensuring that your use of the Service complies with all applicable local, state, federal, and international laws, including data privacy and data protection laws. (d) Security and Confidentiality: Customer is responsible for the security and confidentiality of any credentials and log-in information used to access the Customer’s Account. Customer is responsible for all actions taken under the Customer Account, regardless of whether or not the Customer knows of authorized actions (“Authorized Actions”). (e) Administrator Permissions: Depending on administrative permissions Customer grants to Customer and any authorized individuals engaged by Customer to use the Service on Customer’s Behalf (“Users”), Administrators are authorized to take actions on Customer’s behalf with respect to endpoint devices. Customers should regularly review Customer Administrators and permissions granted to ensure only authorized individuals have and retain access to Customer Account. Customer is responsible for ensuring Administrators comply with this Agreement. METABASE Q, INC. encourages Customer to assign no or the minimal level of permissions necessary to Users.
You agree to pay all fees including but not limited to subscription fees, late fees, penalties and remedies (i.e., termination of the service) for the Service in accordance with the pricing and payment terms in your subscription plan and contract. All payments are non-refundable.
The Service and all materials, visual interfaces, graphics, design, compilation, information, data, software, computer code, and other elements of the Service provided by the METABASE Q, INC. are protected by intellectual property and other laws. All such materials are the property of the METABASE Q, INC. or its third-party licensors. You may not make use of these materials except as expressly authorized by the METABASE Q, INC. in this Agreement. METABASE Q, INC. reserves all rights to the Service not expressly granted to you in this Agreement.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COMPANY ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
METABASE Q, INC. ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL METABASE Q, INC., ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, OR LICENSORS (THE “ENTITIES”) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COMPUTER DAMAGE, SYSTEM FAILURE, OR OTHER TANGIBLE AND INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICE. UNDER NO CIRCUMSTANCES WILL THE ENTITIES BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT.
THE AGGREGATE LIABILITY OF THE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE, OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO AMOUNTS CUSTOMER HAS PAID TO METABASE Q, INC., OR METABQ API. FOR USE OF THE PLATFORM OR SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You are responsible for your use of the Service, and you will defend and indemnify METABASE Q, INC. and Entities from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; or (c) your violation of any third-party right, including any intellectual property right or privacy right.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the authority to bind the other or to incur obligations on the other’s behalf without the other’s prior written consent.
(a) Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of law principles.
(b) Dispute Resolution – Binding Arbitration: In the interest of resolving disputes between you and METABASE Q, INC. in the most expedient and cost-effective manner, you and METABASE Q, INC. agree that every dispute arising in connection with this Agreement will be resolved by confidential binding arbitration administered by JAMS in California, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (or the JAMS Comprehensive Arbitration Rules and Procedures, if applicable). The arbitration shall be conducted in San Francisco, California, unless otherwise mutually agreed by the parties. The arbitration award shall be final and binding, and judgment on the award may be entered in any court having jurisdiction thereof.
(c) No Class Actions: YOU AND METABASE Q, INC. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
(a) Definition of Confidential Information: “Confidential Information” means any non-public information, whether business or technical, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement, including but not limited to, the Service, Agent, Platform, pricing, business plans, product roadmaps, customer data, trade secrets, know-how, and any other information that is designated as confidential or that, by its nature, would reasonably be understood to be confidential. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was rightfully known by the Receiving Party prior to its disclosure by the Disclosing Party without breach of any confidentiality obligation; (iii) is rightfully obtained by the Receiving Party from a third party without restriction on disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
(b) Obligations: The Receiving Party agrees to: (i) use the Disclosing Party’s Confidential Information solely for the purpose of fulfilling its obligations or exercising its rights under this Agreement; (ii) maintain the Disclosing Party’s Confidential Information in strict confidence, using at least the same degree of care that it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; and (iii) not disclose or permit the disclosure of the Disclosing Party’s Confidential Information to any third party, except to its employees, contractors, and agents who have a need to know such information for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as protective as those set forth herein.
(c) Compelled Disclosure: If the Receiving Party is compelled by law, court order, or governmental agency to disclose any Confidential Information, it shall provide the Disclosing Party with prompt prior written notice (to the extent legally permitted) so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall only disclose the portion of the Confidential Information that it is legally required to disclose.
(d) Return or Destruction: Upon termination or expiration of this Agreement, or upon the Disclosing Party’s written request, the Receiving Party shall, at the Disclosing Party’s option, promptly return or destroy all Confidential Information (including all copies thereof) and certify in writing to the Disclosing Party that it has complied with this obligation.
(a) Privacy Policy: Our collection, use, and processing of your personal data are governed by our Privacy Policy, located at www.batuta.com/privacy-policy, which is incorporated into this Agreement by reference.
(b) Data Processing: To the extent that METABASE Q, INC. processes personal data on your behalf as a “Data Processor” (as defined by the GDPR), the terms of the Data Processing Addendum (“DPA”), located at www.batuta.com/data-processing-addendum, shall apply and are hereby incorporated into this Agreement by reference. You agree to be bound by the terms of this DPA.
This Agreement may be executed and delivered by electronic means. The electronic signature of either party shall be deemed a valid, enforceable, and binding signature to the same extent as a manual signature. A facsimile, PDF, or other electronic copy of this Agreement, or any signature to this Agreement, shall be deemed an original and legally binding upon all parties. You consent to conduct transactions and receive communications by electronic means.
“Neither party shall be liable for any failure or delay in performance under this Agreement due to acts of God, war, terrorism, riots, embargoes, fire, floods, epidemics, or other natural disasters, strikes, or any other cause beyond the reasonable control of the affected party. However, this Section 16 shall only apply to METABASE Q, INC.’s obligations hereunder, and shall not excuse Customer from its payment obligations. The party affected by the event shall notify the other party and shall use commercially reasonable efforts to mitigate the effects of the event.”
The Service, Agent, and derivatives thereof are subject to the export control and sanctions laws and regulations of the United States and other applicable jurisdictions. By accessing or using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services (e.g., Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine), and that you are not on any U.S. government denied-party list (such as the Specially Designated Nationals list or the Denied Persons List). You agree that you will not export, re-export, or transfer the Service or Agent to any embargoed country or to any denied party, or use the Service or Agent for any purpose prohibited by U.S. or other applicable export control laws and regulations.
We reserve the right, at our discretion, to change this Agreement on a going-forward basis at any time. We will provide notice of such changes by updating the “Last Updated” date at the top of this Agreement. By continuing to access or use the Service after these changes have been made, you indicate your agreement to the revised terms.
This Agreement, along with any other agreements expressly referenced, constitutes the entire and exclusive understanding and agreement between you and the Company regarding your use of the Service and supersedes all prior agreements.
If you have any questions about this Agreement, please contact us at:
METABASE Q, INC. dba Batuta, 2193 Filmore St., San Francisco, CA 94115, support@batuta.io